The Foundation for Individual Rights in Education (FIRE) is pleased that Tufts University has decided to renew its commitment to freedom of expression. Unfortunately, the draft “Declaration on Freedom of Expression and Inquiry at Tufts University” fails to adequately protect freedom of expression at Tufts and will, in all likelihood, invite more censorship and uncertainty while discouraging robust debate, candor, and dissent. The policy’s most fundamental flaws are, first, that it fails to inspire students and faculty to value freedom of expression, and second, that its support for freedom of expression is far too equivocal.

EXECUTIVE SUMMARY

The draft Declaration on Freedom of Expression and Inquiry at Tufts University fails to inspire students and faculty members to value freedom of expression on campus. While the first two paragraphs discuss the importance of free inquiry at Tufts, the remainder of the document is dedicated to exceptions to free expression and the university’s role in regulating speech on its campus in order to protect values such as “dignity,” “respect,” “tolerance,” and “civil dialogue.” Taken as a whole, the draft Declaration sends the message that while Tufts would like to have free expression and inquiry on its campus, anyone wanting to engage in such activities will be subject to a number of vague and confusing regulations.

Rather than being a broad statement about the value of free inquiry on campus, the draft Declaration appears squeamish about First Amendment principles. The draft Declaration would subject Tufts community members to much more stringent regulations on expression than would ever be permissible on public campuses. It sends the message that the university is no longer prepared to cope with the challenges that come with unfettered expression, and it raises the question of why Tufts believes that it cannot succeed in its mission while meeting the same standards for freedom of expression by which public universities must abide.

Several specific provisions of the draft Declaration are responsible for the weakness of the document as a whole. First, the draft Declaration’s statement that education “requires an environment of respect, tolerance, and civil dialogue,” as well as its “obligation” to protect the “dignity” of others, undermine any serious commitment to freedom of speech in the document. Certainly, a college may say that it values “respect, tolerance, and civil dialogue” and, consistent with freedom of expression, Tufts may promote expression that “respect[s] the dignity of others.” However, stating that Tufts, and indeed education itself, requires respect, tolerance, and civility creates an exception that swallows the rule of free speech, for any enforcement mechanism for these rules would require eternally impartial and infallible arbiters of what is respectful, dignified, civil, and so on. As countless philosophers, thinkers, and scholars have pointed out, no person or institution is qualified to perform such a task.

Second, the statement’s assertion that the law prevents speech that may “provoke another person to violence” dangerously invokes the discredited “fighting words” doctrine which has been used by colleges for decades as a justification for censorship. True incitement is not protected by the law, but language that simply disturbs others enough that they threaten to cause a campus disturbance may not, consistent with freedom of expression, be proscribed or punished. To permit the possible reactions of others to guide policy amounts to granting a “heckler’s veto” to the most disruptive persons on campus, enabling the most violent persons on campus to decide what expression will be permitted.

Finally, while a university may ban “harassment” and “intimidation,” the university should be very wary of these terms, for they have been consistently abused over the past several decades by campuses to ban or punish speech that would be clearly protected by the First Amendment. Indeed, this problem is not merely theoretical at Tufts; last year, a student committee found a student publication guilty of “racial harassment” for speech that could not be considered harassing by any legal definition. The draft Declaration makes no effort to remind policymakers at Tufts that there is a key difference between, on the one hand, objectively offensive speech that is severe and pervasive enough to interfere with someone’s education and, on the other hand, the kind of vigorous debate (including harsh parody and satire) that may well hurt feelings and even cause the kind of sadness and shame that leads one to introspection and the free changing of one’s mind.

Given these fatal flaws, flaws which transform a policy intended to promote freedom of speech at Tufts into a policy that may endanger it, Tufts should carefully review and redraft the Declaration. FIRE strongly encourages Tufts to use Yale’s 1974 Woodward Report as a guide to future drafts.

DETAILED DISCUSSION

FIRE’s primary concern with the draft Declaration on Freedom of Expression and Inquiry at Tufts University is that it fails to inspire students and faculty members to value freedom of expression on campus. This is a crucial flaw in any effective statement about freedom of speech. While the draft Declaration opens with two paragraphs that send a convincing message about the importance of free inquiry at Tufts, the remainder of the document is largely given over to the exceptions to free expression and the university’s role in regulating speech on its campus in order to protect values such as “dignity,” “respect,” “tolerance,” and “civil dialogue.” Reading the draft Declaration all the way to the end sends the message to the reader that while Tufts would like to have free expression and inquiry on its campus, anyone wanting to engage in such activities will be subject to a number of vague and confusing regulations.

Overall, the effect is to turn a statement that seems intended to be a great university’s declaration in support of its students’ and faculty’s most fundamental rights into something much more equivocal—a balancing policy that reveals Tufts University’s squeamishness about First Amendment principles and the marketplace of ideas. In its current form, the draft Declaration would subject Tufts community members to much more stringent regulations on expression than would ever be permissible to apply against students at Massachusetts’ nearby public universities and community colleges. It sends the message that, after 150 years in which Tufts has managed to succeed and thrive with less-regulated speech, the university is no longer prepared to cope with the challenges that come with unfettered expression. Since many public and private universities prosper despite their choices not to regulate speech in this manner, the draft Declaration raises the question of why Tufts believes that it cannot succeed in its mission while meeting the same standards for freedom of expression.

It has long been recognized that the university “is peculiarly the‘marketplace of ideas,'” as the Supreme Court argued in Healy v. James, 408 U.S. 169, 180 (1972). In recognition of this principle, the best model for Tufts to follow is Yale University’s 1974 Woodward Report (later titled the Report of the Committee on Freedom of Expression at Yale), which states, “the university must do everything possible to ensure within it the fullest degree of intellectual freedom. The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.”

The Woodward Report acknowledges that such freedom may at times make life uncomfortable in a small society such as a college. But it concludes that free expression must nevertheless be protected, for “the results of free expression are to the general benefit in the long run, however unpleasant they may appear at the time.” As the Woodward Report so eloquently states, to fulfill a university’s primary purpose of “discover[ing] and disseminat[ing] knowledge by means of research and teaching,” the “free interchange of ideas is necessary not only within its walls but with the world beyond as well.”

In FIRE’s experience, universities tend to restrict freedom of expression when they fail to publicly acknowledge that offense, confusion, embarrassment in learning that one’s views have been wrong, discomfort in hearing one’s views and values vigorously challenged, and other seemingly negative feelings and experiences are a natural part of a fully engaged educational experience. Moreover, such experiences and feelings are also a natural part of the vigorous discussion among free persons—a discussion that all Tufts students experience both on and off campus. Rather than being the results of a distortion in the process of education, such feelings and experiences are the natural results of engaging in the special marketplaces of ideas embodied in liberal arts colleges and research universities. As the Supreme Court stated with enduring eloquence in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943):

[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

The more unsettling the challenge to one’s most deeply held beliefs and values, the more such a challenge bears on what one believes is constitutive of one’s very being, the more educational it might be. If the draft Declaration fails to inspire students about the importance of free speech and the opportunity for personal and intellectual growth inherent in living with free speech, while also failing to prepare students for the sometimes abrasive process of meaningful debate and discussion, it will become a burden rather than a help to Tufts University.

The draft Declaration concludes with the statement that “The achievement of our educational mission requires an environment of respect, tolerance, and civil dialogue.” This language might be intended merely to be hortatory. If so, the unique nature of the issue of freedom of expression makes it inappropriate to put such a statement at a university in the form of a requirement. The philosopher John Stuart Mill observed long ago in his treatise entitled On Liberty that those who seek to ban “intemperate discussion…invective, sarcasm, personality, and the like” cannot be relied upon to use their censorship powers equally or equitably. Rather, they choose to punish speech that cuts against “the prevailing opinion,” while rude or uncivil speech lodged against those who differ from the majority is permitted. The truth of Mill’s assertion has been borne out time and time again in regimes, as large as a nation and as small as a university, that practice censorship.

Civility, tolerance, and civil dialogue are worthy values, but they are not always realistic or necessary. Made into rules, these principles will almost certainly be used to crush dissenting or unpopular views. As the Woodward Report argues:

Without sacrificing its central purpose, [a university] cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect…[I]t will never let these values, important as they are, override its central purpose. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox.

Even if the authorities at Tufts could eternally be trusted never to make mistakes or commit abuses with their powers of speech censorship, it is unlikely that a requirement of uniform “respect, tolerance, and civil dialogue” is truly the desire of members of the Tufts community. Indeed, community members might immediately understand the pitfalls of such a statement when they realize that such a statement would require them to respect and be civil to people who they believe are racists; for example, they would have to respect people who openly argue that affirmative action is wrong and that Islam promotes radicalism—as the student publication The Primary Source has done. Whether or not the outrage against The Primary Source has been justified, it is clear that many in the Tufts community are not prepared to respect those views, and they should not be forced to do so. The academic community benefits from enriched discourse when people who do not respect one another’s views confront each other openly and peacefully in the free marketplace of ideas. To ask people to hide their disgust for views they find abhorrent is to deny freedom of expression and, in many cases, the academic freedom that leads to exposure of flawed ideas and their correction.

The draft Declaration also threatens freedom of expression when it establishes an “ethical” obligation “[t]o exercise freedom of expression and inquiry in ways that respect the dignity of others.” If this “ethical obligation” is in any way translated into a requirement or a policy that may be enforced through the student code of conduct, it has the potential to eviscerate all of the support the statement might otherwise provide for the protection of free expression on campus. Virtually any truly dissenting speech on any important topic or issue can be considered disrespectful of the dignity of others. The preservation of dignity is a completely subjective consideration, leaving members of the community in the dark regarding how to engage in campus discourse without violating their putative ethical obligation. Campus authorities empowered to protect a general idea of student dignity will have unfettered power to punish opinions they dislike. Any enforceable dignity requirement will chill expression and impoverish campus discourse just as effectively as would an enforceable requirement of “respect, tolerance, and civil dialogue.”

2. The assertion that the law prohibits speech that might “provoke another person to violence” appears to be based on a largely discredited legal doctrine

The draft Declaration’s statement that the law does not permit a person “to provoke another person to violence” seems to invoke the largely discredited “fighting words” doctrine. Although many colleges have used this doctrine as a justification for censorship, the use of the “fighting words” doctrine in support of university speech regulations was explicitly defeated in court in UWM Post, Inc. v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 (E.D. Wisc. 1991), where the federal district court rejected the university’s argument that the doctrine allowed it to prohibit a wide range of racist speech. Moreover, ever since the doctrine was introduced in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), this doctrine has steadily been eroded by the courts. Many scholars, including Nadine Strossen, the former president of the American Civil Liberties Union, believe that we have now reached the point where the doctrine is essentially dead (“Regulating Racist Speech on Campus: A Modest Proposal?” 1990 Duke Law Journal 484, 510 (1990)). Indeed, the Supreme Court has not upheld a single “fighting words” decision since Chaplinsky in 1942, meaning that the doctrine is now alive, if at all, far more in theory than in actual practice.

While it may sound correct to say that the law bans people from “provoking others to violence,” this principle really makes sense only in terms of the legal doctrine of “incitement.” The incitement doctrine does not cover speech that merely aggravates, annoys, or even enrages the listener; rather, it covers advocacy of force “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

Banning expression that would “provoke another person to violence” is a bad idea because it would establish a “heckler’s veto” over speech at Tufts, creating a perverse incentive to threaten violence in response to speech with the knowledge that the threat itself will inspire university authorities to eliminate the expression of a certain point of view from campus. Permitting any sort of “heckler’s veto” endangers the core of freedom at an institution of higher learning and the very rule of civilized law itself. The law expects Americans to exercise the level of restraint necessary to avoid responding to mere speech or expression with physical violence. Furthermore, the draft Declaration’s apparent reliance on the “fighting words” principle under the rubric of “provocation” seems to presume that Tufts students will respond violently to the wrong words. This shares with the “fighting words” doctrine a dim view of humanity and is insulting to Tufts’ students’ ethics and autonomy.

3. Concerns about intimidation and harassment are not placed in the unique context of higher education

Another basic “dimension” of respect for one another, as promulgated by the draft Declaration, argues that community members should be “free from various forms of harassment and intimidation which may interfere with their ability to study, grow, and attain their full potential,” but this formulation fails to put harassment and intimidation into the unique context of higher education. This issue is critical because the most common origins of assaults on free speech in higher education are collegiate efforts to rein in intimidation, racial harassment, and sexual harassment. The sad truth is that university after university has abused policies that ostensibly prohibit harassment and intimidation to censor much innocuous and even mundane speech. Abuses of these policies can soar to absurd levels; for instance, last fall, Indiana University–Purdue University Indianapolis found a student guilty of racial harassment merely for reading a scholarly book to which his co-worker objected. Tufts itself is no stranger to the misapplication of harassment rationales, as demonstrated by its harassment finding in 2007 against The Primary Source for publishing political satire that would unquestionably be protected by the Constitution if published off campus, and for commentary focusing on race-based admissions and on the school’s “Islamic Awareness Week.” The same publication suffered a similarly unjustified sexual harassment charge in 2001 over a satirical cartoon and other written remarks.

If Tufts intends to take harassment seriously, it must ensure that it does not conflate harassment with mere annoyance—even severe annoyance. Behavior constituting harassment, as legally defined, is a serious crime, while annoying or offensive speech is, rightfully, not a crime at all. Under the Supreme Court’s formulation, harassment in the educational sphere should be defined as conduct which is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis v. Monroe County, 526 U.S. 629, 651 (1999).

Likewise, intimidation, properly defined, does not simply mean anything that someone might find “intimidating” in the colloquial sense of the word. Legally proscribable intimidation is a subset of the “true threats” doctrine, which covers “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). Within this formulation, intimidation is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. at 360. If Tufts wishes to address and prevent true harassment and intimidation through its policies, it should ensure that the language in those policies tracks these legal definitions. Responsible guidance from the Task Force on Freedom of Expression should provide these definitions.

Private Universities May Openly Declare Values That Trump Freedom of Expression, But Should They?

A private college or university may, if it chooses, adopt policies that reject the freedom of speech that students at public institutions enjoy. Private universities are free to make it known that students will not have the same speech rights as those they would enjoy at, for instance, a Massachusetts community college. Tufts would not be doing its students a service, however, by adopting the draft Declaration’s ambiguous language that makes it unclear whether expression at Tufts is truly as free as it is at a public college or university.

As a nonprofit institution of higher learning with a long history, Tufts has a trust to maintain with its alumni and donors, as well as its current faculty and students, all of whom came to Tufts expecting the university to continue its tradition of free expression. Indeed, Tufts has presented itself as a non-sectarian center for freedom of inquiry and expression since its founding. Enacting speech restrictions would reverse over 150 years of tradition if Tufts decides that it will no longer uphold its noble promises of academic freedom and free speech.

Tufts has a 1.5-billion-dollar endowment, 8,500 current students, and more than 80,000 alumni, as well as 19,200 donors in the last year alone. If Tufts is willing to consider promulgating a moral and ethical obligation among its students to prize civility, respect, and tolerance above freedom of expression, should not Tufts also consider its own moral obligation to those who gave so generously to Tufts for the last century and half? Making the significant change of course and values that is represented by the draft Declaration would seem to require specific notification of (if not also discussion among) Tufts’ thousands of alumni, donors, and students. Tufts may want to distinguish itself as a place (like many sectarian colleges) where certain values are more important than freedom of expression. If so, Tufts would then have a moral obligation to notify future students that this is the environment they are joining. Those future students, however, may not understand why a liberal arts college would so restrict discourse on campus in the name of specific values.

In addition, a significant policy change that restricts student expression would be a breach of trust with current students, who have joined the Tufts community under the promise of truly free expression. Likewise, faculty under contract who are subject to new restrictions may well decide that they no longer want to work under the new restrictions and the potential for arbitrary, viewpoint-based punishment. They might even find that their contracts do not bind them to such new limitations or that, as a matter of ethics, Tufts ought not to bind them to such new limitations.

CONCLUSION

In crafting an inspiring document that touts Tufts’ commitment to freedom of speech, it would seem wisest that the Task Force on Freedom of Expression not overemphasize the exceptions to freedom of expression. Unless the document helps students and faculty understand the sublime and sometimes painful power of speech to spark meaningful debate and discussion, it will likely fail in its overall mission, with the exceptions henceforth treated as more important than the general rule.

The Woodward Report, a wealth of Supreme Court and other cases, and a variety of political writings over the past few centuries provide stirring language about freedom of expression and academic freedom that the Task Force on Freedom of Expression would do well to consider and quote. A final Declaration on Freedom of Expression, if it is to guide policy and to endure at a liberal arts university, should ennoble the campus and embolden all parties to make their voices heard on campus so that their expression may be tested in the Tufts community. Indeed, the Task Force’s invocation of “ethical obligations that members of this community owe to one another” would seem to include, at modern liberal universities, an obligation dating at least to Socrates to challenge, to refute, and to vigorously denounce expression and ideas with which one vehemently disagrees.

Tufts is, of course, free to promote and teach the values it believes are most worth having. As a free institution in its own right, Tufts may also subject those who do not express the approved values, or who express alternative values, to public disapproval and shame. Whether such a practice is sound educational policy is a question for the Tufts community. But Tufts may not, consistent with a real commitment to freedom of expression, enact official punishment against anyone on campus for speech that would be constitutionally protected in any public forum in the United States.

In enacting the First Amendment, the Framers of the Bill of Rights realized that they were “tying their own hands” when it came to censorship of unpopular expression. Even though the authors and enactors of the First Amendment were among those who had their hands on the levers of power at the time, they realized that stripping governmental authority of that power might cause discomfort in the short run but would benefit the nation in the long run—and they were right. While reserving the power to censor might seem ideal for those in authority, it actually brings with it not only a severe moral hazard but also a practical one: when authority has the power to censor, it will constantly be called upon to use it.

Tufts itself has had this experience multiple times in its dealings with The Primary Source; because the university has been willing to interfere with freedom of expression, it has faced a great deal of pressure to do so. Once in the business of viewpoint-based censorship, Tufts has found it hard to get out of it. Unfortunately, the draft Declaration as written will put Tufts in the controversial business of censorship indefinitely. History is filled with examples of those who censored or suppressed the speech or beliefs of those under their authority. Such leaders are seldom remembered favorably, and they are never remembered favorably for silencing those who dissented. Tufts would be well advised to consider this as well as FIRE’s arguments above, and redraft the Declaration on Freedom of Expression and Inquiry in a fashion that is consonant with our nation’s finest, bravest, and wisest traditions of free speech and open inquiry.